State high court questions if judge told client to flee

September 28, 2005|By Anthony Colarossi, Sentinel Staff Writer

TALLAHASSEE -- Orange Circuit Judge James Henson walked out the front door and down the steps of the Florida Supreme Court on Tuesday with nothing to say, but he knows the next time he hears from the state's highest judicial body, it may be for his removal from office.

For about 40 minutes Tuesday morning, Supreme Court justices asked questions about Henson's actions four and five years ago. That's when he took on a criminal-defense client while he was still a sitting county judge. According to testimony, he urged that client to flee Florida and avoid criminal prosecution.

Both acts violate the rules that govern Florida judges, but the second violation, in particular, caused a state Judicial Qualifications Commission panel to recommend Henson's removal.

He admitted to accepting $15,000 in late 2000 while he was still a county judge, but he has denied telling his former client to leave the country.

The fleeing issue, however, is one the justices kept inquiring about Tuesday when they peppered Henson's attorney, Kirk Kirkconnell, with questions about the case.

"The JQC heard conflicting testimony on this issue and found that your client, in fact, did advise his client to abscond to Colombia," said Justice Raoul G. Cantero III.

"How do we review that and determine otherwise, if the JQC was there and saw the witnesses and basically made a credibility determination?" Cantero asked. "How can we reverse that?"

Kirkconnell said there was not "clear and convincing" evidence to prove Henson urged his client to leave. He said the three witnesses who testified on this matter -- Henson's former client, her father and a former attorney friend of Henson's -- all have some bias.

"You need to consider not only the words, but who says them," Kirkconnell said.

Henson's former client, Diana Jimenez, was charged with two counts of DUI manslaughter in a December 2000 crash that killed two people in Osceola County. She ended up pleading no contest and is serving a 16-year prison sentence.

During a deposition, she indicated she and Henson discussed leaving Central Florida to avoid trial. Her father, Dr. Alberto Jimenez, made similar statements.

Robert Nesmith, a lawyer who once shared office space with Henson, said Henson told him at one point that he had suggested Jimenez leave the country. He also said, "If you repeat this, I will deny it," according to Nesmith's testimony.

But the justices learned that Nesmith originally thought he would take part in the Jimenez defense, only to get "shut out" of the case. They also heard that Nesmith ended up representing Jimenez on legal matters, following her conviction.

Kirkconnell acknowledged that Henson had conversations with Jimenez about leaving, but he said those conversations were not initiated by the judge.

"You simply cannot shut your ears when a client talks about this," Kirkconnell said. "They are scared of going to prison. You can't just say, `I'm not going to listen to that.' "

At one point, Justice Harry Lee Anstead said Kirkconnell's answers were "getting vaguer and vaguer."

"So I am asking, logically, hopefully, a lawyer, for instance, would have some response to that [the idea of fleeing] and would say: `No. That would be wrong. That would be a criminal act, itself, to do that,' " Anstead said.

Kirkconnell said he did not think there was direct testimony showing Henson said anything like that.

Chief Justice Barbara Pariente asked if the court had to believe that three people, including an attorney, perjured themselves in order to believe Henson's version.

Asked if Henson's accepting money as a sitting judge represented grounds for removal, Kirkconnell said, "I do not think so." He suggested a reprimand or a fine.

But Justice Peggy A. Quince called Kirkconnell to task on that violation as well.

"We have a sitting judge who goes out and begins to practice law, while he is still a sitting judge, and is basically using the prestige of his office to get his client," Quince said. "Are we to just sort of overlook that and say, `OK, he thought he was on vacation. He didn't think he had any more judicial duties, although he was still on the payroll at that point?' "

Kirkconnell responded, "I don't think that you should or will overlook that. . . . I think Judge Henson is perfectly willing and believes that he should receive discipline for that, but removal of a judge is the death penalty for a judgeship."